Higgins’ argument for section 116 of the constitution

Luke Beck

    Research output: Contribution to journalArticlepeer-review

    Abstract

    The argument that led to the inclusion of s 116 of the Constitution, a provision that provides a limited guarantee of religious freedom in Australia, has not been properly understood. The standard account of the argument presented by the proponent of the clause, Henry Bournes Higgins, holds that it was included to ensure that no inferential power to legislate with respect to religion could be drawn from the religious words of the constitutional preamble. This article argues that the standard account of Higgins' argument is wrong and that the substance of Higgins' concern was a realisation that the Commonwealth's enumerated powers were wide enough to authorise legislation dealing with religion.
    Original languageEnglish
    Pages (from-to)393-415
    Number of pages23
    JournalFederal Law Review
    Volume41
    Issue number3
    Publication statusPublished - 2013

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